Oxford Seminars in Jurisprudence: Mitchell Berman

Mitchell Berman

'Principled Positivism: How Practices Make Principles, and How Principles Make Rules'

The most fundamental question in general jurisprudence concerns what makes it the case that the law has the content that it does.  This paper offers a novel answer.  In brief: legal practices ground legal principles, and legal principles ground legal rules.  I call this two-level account of the determination of legal content “principled positivism.”  It differs from Hart’s celebrated theory in two essential respects: in relaxing Hart’s requirement that fundamental legal notions depend for their existence on judicial consensus; and in assigning weighted contributory legal norms—“principles”—an essential role in the determination of legal rights, duties, powers, and permissions.  Drawing on concrete legal examples, the paper shows how the version of positivism that it introduces betters Hart’s in meeting the most formidable challenges to positivism that Dworkin marshaled.

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